Concerns over an aggressive push for mass deportations during a Trump presidency have shined the spotlight on the Supreme Court, whose justices seem evenly split on the subject of allowing the government to indefinitely detain immigrants with criminal records fighting their deportation from the country. Donald Trump, who has made immigration one of his primary platforms throughout the campaign, has vowed to remove more than 2.8 million undocumented immigrants once he assumes office.

Government lawyers refer to a 1996 law that recommends the “detention of criminal aliens,” urging the Supreme Court to give the federal government authority over such matters.

But the court’s conservative justices seemed to lean towards reversing a 9th Circuit Court ruling, which mandates that immigration judges need to provide detainees a bond hearing, as well as possible release for noncitizens detained for more than six months while fighting their removal in court. On the other hand, liberal justices seemed to be uncertain if such a specific timeframe could be enforced.

The law states that immigrants found guilty of “aggravated felony” charges can be deported immediately, while those with minor offenses can still fight their removal, especially if they have families and have established ties with the U.S.

Ahilan Arulanantham, an attorney from the American Civil Liberties Union, said that even non-citizens need a “hearing that is individualized.” He argues that immigrants deserve release from detention if they can prove they are not a safety or flight risk. The ACLU lawyer represents a group of legal immigrants in a class action lawsuit, many of whom have found work and established families in the United States. Some have also fought their deportation orders successfully, but only after spending several months in jail.

The case’s lead plaintiff is Alejandro Rodriguez, who first entered the United States as a baby and was eventually given legal permanent resident status. However, he was later convicted for drug possession and “joyriding” charges as a teenager, and was sentenced to removal. He managed to fight his deportation, but only after spending three years in jail.

The Supreme Court’s justices recognize the challenges of the problem. Justice Stephen G. Breyer notes that there is a need to set clear rules for the future to provide clarity to millions of people. Justice Elena Kagan pushed for detention a limit, pointing out that the Constitution has been interpreted to mean, “You can’t just lock people up without any finding of dangerousness, without any finding of flight risk, for an indefinite period of time, and not run into due process.”

On the other hand, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. believe such a ruling is not necessary, as individuals who feel that their Constitutional rights are being violated can simply look for a lawyer and file a habeas corpus lawsuit in federal court.

Arulanantham argues that this option is unrealistic as those kinds of cases can take year to resolve, which in turn means that detained immigrants have no choice but to endure jail time while they wait.

If you or a loved one is concerned about any potential changes to U.S. immigration policy in a Trump administration, find answers to your questions from the legal team of the Lyttle Law Firm. Call our offices today at (512) 215.5225 to schedule a consultation.